Chris Hayes (Fowler, Australian Labor Party) Share this | Link to this | Hansard source

The Parliamentary Joint Committee on Law Enforcement has had a longstanding interest in securing effective unexplained wealth legislation. Unexplained wealth laws were moved in this parliament amending the Proceeds of Crime Act 2002 but they were moved in this parliament in 2010. The Parliamentary Joint Committee on Law Enforcement has been concerned that, ever since those laws were amended, giving our law enforcement agencies greater power to attack serious and organised crime, to date not one case has been brought forward relying on those powers.

These are powers that people refer to as draconian. They are powers that call on people, with a reverse onus of proof, to explain how they obtained their wealth. Failure to do so could result in a forfeiture of their wealth. We knew that was a very bold step for the parliament to take, but as with terrorism the parliamentary joint committee recommended that this issue be advanced in the parliament and the parliament agreed on the basis of the amount of damage that is done to the community resulting from serious and organised crime. In fact, the committee's interest in this really sprang from an overseas delegation that was conducted in 2009, where the committee heard from a number of jurisdictions internationally that, while serious criminals may consider imprisonment to be an acceptable occupational hazard, taking their illicit profits was considered to be a far more serious blow to them and their operations. Serious and organised crime is motivated by greed, power and money and has serious impacts, threatening the economy, national security and quite frankly the wellbeing of all Australians. It has been estimated that the financial cost to the community is conservatively around $15 billion a year as a result of the behaviour of serious and organised crime. The Australian Crime Commission informed the committee that, while serious and organised criminal groups continue to prove resilient and adaptive to legislative amendment and law enforcement intelligence and investigative technologies, the reduction or removal of the proceeds of crime is likely to result in a significant deterrent and certainly a disruption to their activities.

Unexplained wealth legislation represents a new form of law enforcement. Where traditional policing was focused on securing prosecutions and, as a consequence, follows the commission of the crime, unexplained wealth provisions contribute to a growing body of measures aimed at preventing and disrupting crime itself. They take the incentive to participate in criminal endeavour. They actually attack the business model that underpins crime. I have often said in this place that we are mistaken if we think of organised criminals as not being business people. They might be running a nefarious operation, but they are still running a business and their business has an underlying profit motive. So to attack the profit imperative of their business not only puts in doubt their ill-gotten gains but also causes them no doubt to reflect upon whether the risk is worth the commission of the crime.

We as a committee think this provision will fill the gap that has been exploited by the heads of criminal organisations, people who are big enough and smart enough—certainly very sophisticated—that you would very rarely see them involved in the actually commission of the crime itself. They are not going to be the ones who are going to be arrested on the street for selling drugs, but they might be the ones who are actually organising the importation of many kilos of drugs at a time. They are the Mr Bigs. What the committee has determined is to recommend that the government address what we think are inadequacies in the current legislation to allow our law enforcement agencies to go after the Mr Bigs of the criminal world. We see it very much as a new technology that law enforcement should have available to it.

I am often lectured by those who are defenders of those pleading innocence in crimes that the appropriate way to proceed with criminal law is that after the commission of a crime, should there be the evidence, an investigation and down the track maybe a prosecution may follow. But what I have always put back to our esteemed colleagues of the legal fraternity is that that analogy always means that, where there is a crime, there is a victim to a crime. What the committee in a very bipartisan way is trying to address is: how do you actually slow down or deter the commission of the crime itself and therefore protect future victims of crime?

Clearly there are a number of jurisdictional issues. The committee has considered the evidence regarding the requirement to link a Commonwealth scheme to a Commonwealth head of power, necessitating the inclusion of a link to a federal related offence. We considered that to be a significant limitation. It undermines the most vulnerable aspects of unexplained wealth provisions, which provide a means to target the heads of criminal networks, who, as I said, are often very insulated from the actual commission of the crime itself. Unfortunately, as we all know from our own electorates, crime does not respect geographic boundaries and criminals certainly do not spend much time reading the federal Constitution.

I will summarise some of the recommendations that the committee brought down in this extensive review that it undertook into the unexplained wealth provisions of the federal legislation. Given the intrusive nature of the unexplained wealth provisions, the committee sought to provide greater clarity and accountability for the use of the provisions, including, in the act itself, a statement of intent stating the objects of the clauses relating to unexplained wealth, noting their primary use against serious and organised crime.

The committee also recommended leaving in place a judicial discretion with the courts about whether to make an unexplained wealth order in respect of cases under $100,000. We did that to show that we are not talking about the person dealing on the street; we have this legislation to target the Mr Bigs of the criminal world. Also, in place of judicial discretion, there is the introduction of additional oversight and accountability measures. We understand that what is being proposed is highly intrusive, some might argue draconian, but nevertheless I think that in the modern world it is so necessary in fighting the contemporary nature of organised crime.

The committee also recommended that further support of unexplained wealth investigations be included—for instance, ensuring that Australian Crime Commission examination material can be used as evidence in trials. This material is often produced in coercive hearings, where a person is compelled to answer. We have indicated that, where material is produced for coercive hearings such as that, with respect to the accumulation of wealth it should also be available to be used as evidence in court.

We explore the possibility of enabling the Australian Crime Commission to conduct specific examinations for the purpose solely of investigations into unexplained wealth proceedings in a manner consistent with the Proceeds of Crime Act and court proceedings. Further, we also recommend the amending of search warrant provisions of the Proceeds of Crime Act to allow specific warrants to be issued in relation to the collection of evidentiary material with respect to unexplained wealth proceedings.

Another significant matter that we sought to bring to the attention of government was the involvement of the Australian Taxation Office. Some time back, the committee recommended that the Australian Commissioner of Taxation be included as a member of the Australian Crime Commission board, and that did occur. I think there is more that we expect out of taxation than revenue collection. Taxation does have a very vital role in ensuring that people are law abiding, and we think there could be an extension of that role. We also think that the Criminal Assets Confiscation Taskforce, which is set up and coordinated by the Australian Federal Police under the taxation regulations, should be expanded to allow greater information sharing, particularly with the Australian Taxation Office, to make greater use of information, including information obtained through telephone interception material, where appropriate. We also recommend the streamlining of core processes through eliminating the current—what we see as unnecessary—duplication in meeting a double evidentiary threshold in respect to unexplained wealth; providing an extension of the time limits for serving notice for a preliminary order where appropriate; removing the potential for abuse of legal expenses and the harmonisation of legal expense related issues to other aspects of the Proceeds of Crime Act itself; and the granting of the ability to register a charge over restrained property to load and secure a payment. One of the problems that has been pointed out to us by the law enforcement jurisdictions is simply to examine unexplained wealth, we will simply see the money transferred the very next day. This will allow law enforcement to proceed directly to the courts, allow them to take a charge out of the property affected as security.

Other aspects were the development of a consistent, effective national approach to unexplained wealth across Australia. As I said, the people that are of interest in these matters do not look at the geography of the country and they do not read the Constitution. They will commission a crime in areas where there is a window of opportunity, where they can make a profit. We recommend that the Commonwealth government take the lead in an effort to harmonise laws in this respect, including seeking the referral power from states to enable sufficient power to be referred, rather to enable the Commonwealth to legislate for an effective unexplained wealth scheme that can be utilised by each of the states and territories in addition to the Commonwealth. The Commonwealth government, effectively, we recommend participate in efforts to also establish international agreements relating to unexplained wealth in the knowledge that serious and organised crime is very much of an international character. We need the participation and cooperation of other international agencies and states.

Further, we recommend pursuing the option of the Commonwealth and states to cooperate in this area, particularly through the Standing Committee on Law and Justice. This has been directly referred to the Attorney-General. I have tried to make the case out that these are laws that our police need to fight contemporary crime.

We expect a lot of our police officers. People put themselves out on the street in harm's way to do what we expect them to do—that is, looking after the safety of our community. Next week on the 17th, I will be attending a fundraising function for Senior Constable David Rixon, whom you will recall was shot and killed in Tamworth on 2 March.

Policing is a very dangerous business. It takes a special type of person with a very special type of courage to put on a police uniform and undertake their duties. They are not and cannot be seen as traditional employees. They are very dedicated people who see that their role in life is to protect our community. For Senior Constable David Rixon and his wife Fiona, they have paid the ultimate sacrifice as a family. I think we have an obligation to ensure that people who serve in the force such as Senior Constable David Rixon have at their disposal the necessary support, regulative support, laws and arrangements to allow them to effectively do their jobs on behalf of our community. I commend the report to the House.

Question agreed to.